Exp. 01044-2018-00272 · Ordinary Action for Extinctive Prescription
Lisa, S.A. filed its cassation hearing brief before the Civil Chamber of the Supreme Court of Justice on July 23, 2025, challenging the appellate ruling that declared the dividend payment obligation of Reproductores Avícolas, S.A. in its favor prescribed and extinguished. The appeal remains pending.
Reproductores Avícolas, S.A. (successor of Escobio, S.A.) sued Lisa, S.A. in an ordinary action for extinctive prescription, seeking to declare prescribed the dividends decreed at the May 31, 2012 shareholders' assembly. Lisa, a 25% shareholder, opposed the claim on grounds of non-enforceability and prescription interruption due to judicial embargoes on its dividends. The Eighth Civil Court dismissed the claim, but the Fifth Court of Appeals reversed and declared the obligation prescribed. Lisa filed a cassation appeal before the Supreme Court of Justice, which remains pending.
Escobio, S.A. (later merged by absorption into Reproductores Avícolas, S.A.) filed an ordinary action for extinctive prescription against Lisa, S.A. on February 23, 2018, seeking to declare prescribed the dividend payment obligation arising from the profit distribution agreement of the Annual General Shareholders' Assembly of May 31, 2012. The plaintiff argued that the corresponding amounts were available to shareholders at the company's registered office the day after the assembly, and that with more than five years having elapsed without Lisa claiming payment, the obligation was prescribed under Article 1508 of the Civil Code.
Lisa, S.A., a 25% shareholder, answered in the negative and filed two peremptory exceptions. The first, for non-enforceability of the obligation, argued that Clause Sixteen of the articles of incorporation grants the Board of Directors the authority to determine the date and form of dividend payment, a condition that was never fulfilled. The second, for prescription interruption, invoked both Lisa's actions as creditor (a summary opposition to its exclusion as shareholder and an extrajudicial demand for payment in February 2017) and the embargoes obtained by seven Avícola Villalobos Group entities in separate proceedings that kept all of Lisa's dividends frozen by court order, including Expediente 01163-2012-00178, Expediente 01045-2012-00210, Expediente 01045-2012-00242, and Expediente 01044-2012-00279. Lisa further noted that the plaintiff paid dividends to all other shareholders but selectively withheld those owed to Lisa, and that the exclusion resolution itself recognized the obligation to liquidate Lisa's share, making the prescription claim contradictory.
The court rejected Lisa's exceptions for lack of evidentiary support (evidence was filed late), but analyzed the plaintiff's claim and concluded it also failed. The evidence offered (assembly minutes excerpt, accounting certification, and certification of no judicial challenge) did not establish when the obligation became enforceable. The accounting certification did not identify Lisa as the beneficiary, and the articles of incorporation, though present in the file, were not offered as evidence and could not be evaluated. Without an enforceability parameter, the prescription period could not be computed.
The extinctive prescription claim was dismissed. No costs were awarded.
This ruling represents a first-instance victory for Lisa in a case central to the dividends owed to it. However, Lisa's allegations of prescription interruption through embargoes, abuse of process, and discriminatory treatment were not resolved on the merits because its evidence was rejected as untimely.
The Fifth Civil and Commercial Chamber of the Court of Appeals received the file on April 19, 2024, following notification of the ruling to Lisa on March 12, 2024, nearly a year after issuance. The hearing took place on June 6, 2024.
Reproductores Avícolas argued on appeal that the dividend payment obligation was enforceable from the date of the assembly under Articles 134 of the Commercial Code, 1401 of the Civil Code, and 675 of the Commercial Code, which establish immediate performance of commercial obligations absent an agreed-upon term. Lisa opposed, contending that the appeal lacked factual basis and that the plaintiff had not proven the birth of the obligation or the prescription period.
The Chamber focused on two issues. On enforceability, it determined that the dividend obligation arises when the assembly approves distribution, with no additional act required from the Board of Directors. On procedural congruence, it found that the first-instance judge violated Article 26 of the Code of Civil and Commercial Procedure by resolving ex officio on the absence of enforceability parameters, a matter Lisa should have raised through its exceptions. The Chamber confirmed that Lisa submitted no evidence during the evidentiary phase to rebut the plaintiff's claims.
The Chamber reversed the first-instance ruling, declared the dividend payment obligation prescribed and extinguished, and condemned Lisa to pay costs. This ruling is a setback for Lisa: the Court of Appeals held that dividends were immediately enforceable without considering the embargoes that prevented collection or the provision in the articles of incorporation conditioning payment on a Board determination.
Lisa, S.A. filed its hearing brief before the Civil Chamber of the Supreme Court of Justice, challenging the appellate ruling of June 26, 2024. The cassation appeal on substantive grounds is based on two sub-motives.
Error of fact in evidence appreciation. Lisa alleges misrepresentation of the certificate from the President of the Board of Directors containing the relevant portion of the May 31, 2012 assembly minutes. Lisa argues that this document proves only that the assembly took place and dividends were decreed, not that the obligation was enforceable from that date. The Chamber drew conclusions inconsistent with the document's content, defining the moment of enforceability in place of the party bearing the burden of proof. Lisa notes that the plaintiff itself stated in its complaint that enforceability arose "the day after" the assembly, contradicting Article 675 of the Commercial Code, which requires immediate performance.
Error of law in evidence appreciation. Lisa alleges that the Chamber assigned probative value contrary to the rules of reasoned critical analysis (sana crítica razonada) to the certificate from the President of the Board of Directors regarding the company's "Judicial Process Control Records," which certifies the absence of lawsuits by Lisa challenging the distribution agreement. The Chamber concluded this proved Lisa's inaction, but Lisa argues that only the Judiciary can certify the existence or non-existence of lawsuits, and that the certificate addresses challenges to the distribution agreement, not dividend collection actions, which are legally distinct claims.
Lisa seeks to quash the appellate ruling, reinstate the first-instance ruling of March 28, 2023 that rejected the prescription claim, and have Reproductores Avícolas condemned to costs. The resolution of this appeal will determine whether Lisa retains or permanently loses its right to the dividends decreed in 2012.
| Date | Document | Issued by |
|---|---|---|
| Mar 28 2023 | Order | 8th Civil Court |
| Jun 26 2024 | Appeal Ruling | Court of Appeals |
| Jul 23 2025 | Cassation Appeal | Lisa, S.A. |
The Civil Chamber of the Supreme Court of Justice must decide Lisa, S.A.'s cassation appeal, which seeks to quash the appellate ruling and reinstate the favorable first-instance judgment that rejected the dividend prescription claim.